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Mon, 11 Sep 2017 22:57:33 +0000en-UShourly1https://wordpress.org/?v=4.7.6New Notice Requirement For Domestic Violence Victims’ Rights To Go Into Effect (July 1, 2017)http://calemploymentlawupdate.proskauer.com/2017/06/new-notice-requirement-for-domestic-violence-victims-rights-to-go-into-effect-july-1-2017/
http://calemploymentlawupdate.proskauer.com/2017/06/new-notice-requirement-for-domestic-violence-victims-rights-to-go-into-effect-july-1-2017/#respondFri, 30 Jun 2017 17:16:49 +0000http://calemploymentlawupdate.proskauer.com/?p=6485Continue Reading]]>As we previously blogged, Assembly Bill 2337 (approved by the Governor last fall) will go into effect on July 1, 2017, and California employers will be required to give written notice of workplace rights that must be provided to victims of domestic violence, sexual assault, and stalking. The Labor Commissioner has just posted a form that employers may elect to use to comply with these provisions.

Employers should ensure that they give new hires written notice of all the workplace rights set forth in AB 2337 by at least providing new hires with this form.

The new rules further expand the Fair Employment and Housing Act’s (FEHA) role in preventing discrimination in employment and housing on the basis of gender identity. In addition, the regulations describe some new policies that employers must implement, including the following:

Restroom Facilities

Employers are now required to provide equal access to facilities regardless of the sex of the employee. Employees must be permitted to use facilities that correspond to the employee’s gender identity or gender expression. Employers must use gender-neutral signage for single-occupancy facilities under their control. They cannot require any proof of sex or gender for an employee to use a particular facility.

Transitioning

The new regulations add a definition of “transitioning” and prohibit discriminating against an individual who is transitioning, has transitioned, or is perceived to be gender transitioning. Transitioning is defined as a process in which an individual begins living as the gender with which they identify and can include changes in name usage, participation in employer-sponsored activities, undergoing hormone therapy, etc.

Dress Standard

An employer cannot impose a dress standard that is inconsistent with an employee’s gender identity or expression in the absence of a business necessity.

Preferred Name and Identity

The new regulations require employers to abide by an employee’s request to be identified by a certain name or a certain gender identity. Employers can only insist on using an employee’s legal name or gender if it is otherwise required to meet a legally-mandated obligation.

Documentation

An employer cannot inquire or require documentation on sex, gender, gender identity, or gender expression as a condition of employment.

Employers should ensure their policies comply with these new regulations regarding transgender identity and expression before July 1, 2017. Employers should also review their employee handbooks to make sure any policies contained therein comply with the new regulations.

***Special thanks to Cole Lewis, Summer Associate, for his assistance in preparing this alert.

The Shingle Springs Band of Miwok Indians is a federally-recognized Indian tribe located on the Shingle Springs Rancheria in California. Beth A. Bodi, a member of the tribe, worked at the tribe’s full-service health clinic. Bodi’s employment was terminated after she attempted to take job-protected leaved under the federal Family Medical Leave Act (“FMLA”). Although she was rehired, she was fired again after sending a communication to tribal officials complaining about her earlier termination and noting her willingness to seek redress in state court. Bodi subsequently filed suit under the FMLA and state law in California state court, and the tribe removed the action to federal court based upon the federal question presented by the FMLA claim. The tribe then filed a motion to dismiss based upon the tribe’s sovereign immunity. The district court denied the motion on the ground that the tribe had waived its immunity by removing the action to federal court. The United States Court of Appeals for the Ninth Circuit reversed, holding that the tribe did not waive its immunity by removing the case to federal court.

Andrea Waters, who worked as a firefighter and paramedic for the City of Petaluma, alleged she was harassed and discriminated against based upon her sex. Waters also claimed she suffered retaliation after she complained about the treatment. Waters took a leave of absence from her job, filed a complaint with the EEOC in which she alleged sexual harassment and retaliation and then resigned her employment. The City retained outside counsel to investigate Waters’ EEOC complaint and to assist it in preparing to defend the City in an anticipated lawsuit. The retention agreement with counsel stated that the lawyer was retained to conduct an impartial investigation and that the investigation would be subject to the attorney-client privilege. The retention agreement further stated that the lawyer would offer a “professional evaluation of the evidence based upon her experience in employment law,” but it also provided that “…in this engagement [the attorney] will not render legal advice as to what action to take as a result of the findings of the investigation.”

In defending the lawsuit, the City asserted the “avoidable consequences doctrine” as a defense, claiming that Waters had failed to take reasonable and necessary steps to avoid the harms and/or consequences that she allegedly had suffered. The City refused to produce the outside attorney’s investigative report and materials to Waters, asserting the attorney-client privilege and the work product doctrine. The trial court concluded the documents and other information sought by Waters were not privileged or subject to work-product protection and that, even if they were, the privilege had been waived because the City had put the investigation at issue by asserting the avoidable consequences doctrine. The Court of Appeal initially denied the City’s petition for a writ of mandate, but after the California Supreme Court granted a writ of review and transferred the matter back to the appellate court, the Court (in this opinion) changed its mind and held that the materials were privileged because the “dominant purpose of outside counsel’s factual investigation was to provide legal services to the employer in anticipation of litigation” and that the privilege was not waived by the employer’s assertion of the avoidable consequences defense.

Luis Castro-Ramirez sued his former employer, Dependable Highway Express, Inc., for “associational disability discrimination,” failure to prevent discrimination and retaliation under the California Fair Employment and Housing Act (“FEHA”) and wrongful termination. Castro-Ramirez’s son requires daily dialysis, and Castro-Ramirez must administer the treatment to his son. Castro-Ramirez’s supervisors had for several years scheduled his work so that he could be at home to administer the dialysis, but that accommodation changed when a new supervisor took over and terminated Castro-Ramirez for refusing to work a shift that did not permit him to be home in time to administer the dialysis. The trial court granted the employer’s motion for summary judgment, but the Court of Appeal (over a strong dissent) reversed, holding that FEHA creates a duty on the part of the employer “to provide reasonable accommodations to an applicant or employee who is associated with a disabled person,” not just to applicants and employees who themselves are disabled (citing Cal. Gov’t Code § 12926(o) (“physical disability” includes a perception that a person is associated with a person who has, or is perceived to have, a disability)). See alsoWallace v. County of Stanislaus, 245 Cal. App. 4th 109 (2016) (Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013) does not require an alleged victim of disability discrimination to prove “animus or ill will,” onlythat discriminatory intent was a substantial motivating factor/reason for the
employer’s actions).

The new anti-discrimination and harassment regulations clarify an employer’s duty to take reasonable steps to prevent discriminatory and harassing conduct. Specifically, the amended regulations require employers to create written policies that meet the requirements detailed below.

lists all current protected categories covered under the Fair Employment and Housing Act (“FEHA”)—so it is no longer permissible to list only some protected categories and have a catch-all “or any other characteristic protected by law”;

states that the law prohibits coworkers, third parties, supervisors and managers from engaging in conduct prohibited by the FEHA;

creates a complaint process that ensures: confidentiality (to the extent possible under the circumstances); a timely response; impartial, fair, thorough, and timely investigation by qualified personnel; appropriate due process, documentation and tracking; that appropriate conclusions will be made and remedial actions will be taken, and timely closure;

provides a complaint mechanism that allows employees the option of complaining to an individual or entity other than his or her immediate supervisor;

instructs supervisors to report any complaints of misconduct to a designated company representative; and

makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in a workplace investigation.

Employers must also make their employees aware of their written anti-discrimination and harassment policy by doing one or more of the following: distributing copies of the policy with an acknowledgment form for employees to sign; posting the policy in the workplace; discussing the policies upon hire, or via another method that ensures employees receive and understand the policy.

Further, employers must translate the policy into every language that is spoken by at least 10 percent of its workforce.

Recordkeeping For Sexual Harassment Training

Employers are now required to keep documentation of sexual harassment training for a minimum of two years, including but not limited to, the names of the supervisory employees trained, the date of the training, the sign-in sheet, a copy of all certificates of attendance or completion issued, a copy of all written or recorded materials that comprise the training, and the name of the training provider.

Impact of New Regulations on Employers

Employers should update their anti-discrimination and harassment policies to ensure compliance with the new regulations. Further, Employers should review their investigation procedures and institute any changes necessary to comply with the requirements described above. Finally, employers should update their record retention policies to meet the new regulation’s recordkeeping requirements.

Pregnancy Disability Leave Regulations

Also effective April 1, 2016, employers must comply with new policy and notice requirements related to Pregnancy Disability Leave (“PDL”).

The California Department of Fair Employment and Housing has created a new poster, entitled “Your Rights and Obligations as a Pregnant Employee,” which replaces “Notice A,” a document previously used for providing PDL notice. Employers can meet the new regulation’s posting requirements by posting this notice in a conspicuous place on its premises. While we recommend that employers post this notice in the workplace as soon as possible, the DFEH’s website states that employers will not be penalized if they do not post the new notice immediately upon April 1.

Further, when an employee provides an employer with notice of pregnancy or the need for leave or reasonable accommodation related to pregnancy, employers should provide the employee with the new “Your Rights and Obligations as a Pregnant Employee” notice, instead of the notice previously used by the employer.

Finally, employers are required to either (1) provide employees with notice of their PDL rights in the next version of their employee handbook or (2) send employees a notice of such rights on an annual basis. We recommend including the notice of PDL rights in the employee handbook in order to avoid the administrative burden of distributing an additional annual notice.

Impact of New Regulations on Employers

As discussed above, we recommend posting the updated “Your Rights and Obligations as a Pregnant Employee” notice in the workplace as soon as possible. Also, employers should ensure that they replace their old PDL notices with the “Your Rights and Obligations as a Pregnant Employee” document, and distribute this notice to relevant employees. Additionally, when employers create the next edition of their employee handbook, we recommend ensuring that the new version contains a section notifying employees of their PDL rights that complies with the new regulations.

As always, Proskauer attorneys are available to answer any questions you may have and assist in updating handbooks and polices in order to comply with these new regulations.

Jabari Jumaane, an African-American firefighter with the Los Angeles Fire Department, sued the City of Los Angeles for racial discrimination, harassment and retaliation. Following a 34-day jury trial, the jury found for Jumaane on his claims and awarded him more than $1 million in damages. Following the trial, the city filed a motion for judgment notwithstanding the verdict based upon the statute of limitations, which the trial court denied. In this opinion, the Court of Appeal reversed, holding that the evidence of events that occurred before 2001 was not part of a continuing violation and that the evidence of events that occurred after that date was insufficient to prove the plaintiff’s claims. The appellate court concluded that the trial court committed “manifest error” when it refused to give a city-requested instruction to the jury about the “continuing violation” doctrine – the trial court’s previous denial of the city’s motion for summary judgment on that issue only meant that there were triable issues of material fact that the jury should have been permitted to decide. The Court further held that Jumaane could not rely upon the continuing violation doctrine to sue for events that he alleged occurred in the 1990s because he knew those actions had become permanent by 1999 and that further efforts on his part to end the alleged conduct would have been in vain – yet he did not file his lawsuit until 2003.

Alla Rosenfield, who worked as the Director of Human Resources and Corporate Training for GlobalTranz, was fired after she lodged multiple oral and written internal complaints that the company was not in compliance with the requirements of the Fair Labor Standards Act (FLSA). In this lawsuit, she alleges that she was terminated in violation of the anti retaliation provision of the FLSA (29 U.S.C. § 215(a)(3)) as well as Arizona state law. The district court granted the employer’s motion for summary judgment on the ground that Rosenfield was not entitled to the protections of the statute because she had not “filed any complaint” as required by the law. The United States Court of Appeals for the Ninth Circuit reversed, holding that the company understood Rosenfield’s “interactions” with the company to be “complaints” on the subject of FLSA compliance and because “FLSA compliance was not part of [her] portfolio, her advocacy for the rights of employees to be paid in accordance with the FLSA could not reasonably have been understood (if it was) merely to be part of [her] regular duties” as a manager.

Rosa Lee Cardenas was terminated from her employment as a dental hygienist after she made a report to the police department that a coworker may have stolen her wedding ring at her workplace. Cardenas sued her employer (Dr. Fanaian) on the grounds that she was retaliated against in violation of Labor Code § 1102.5 (forbidding an employer from retaliating against an employee who has reported a violation of the law to a law enforcement agency) and was wrongfully terminated in violation of public policy. The jury found in favor of Cardenas and awarded her approximately $118,000 in damages. The Court of Appeal affirmed the judgment in favor of Cardenas on the ground that a Section 1102.5 claim does not require proof of a violation of a fundamental public policy and need not involve violations of law arising out of the employer’s business activities. See also Nosal-Tabor v. Sharp Chula Vista Med. Ctr., 239 Cal. App. 4th 1224 (2015) (nurse could proceed with whistleblower case arising from termination after she complained about and refused to perform nurse-led testing that may have violated the law).

]]>http://calemploymentlawupdate.proskauer.com/2015/11/court-affirms-118000-verdict-in-favor-of-fired-employee-who-reported-a-crime-to-the-police/feed/0Retaliation Against Family Members Of Whistleblowers Prohibitedhttp://calemploymentlawupdate.proskauer.com/2015/11/retaliation-against-family-members-of-whistleblowers-prohibited/
http://calemploymentlawupdate.proskauer.com/2015/11/retaliation-against-family-members-of-whistleblowers-prohibited/#respondThu, 12 Nov 2015 22:31:28 +0000http://calemploymentlawupdate.proskauer.com/?p=5769Continue Reading]]>This law prohibits employers from retaliating against an employee who is a family member of an employee who has or is perceived to have engaged in protected conduct or made a protected complaint (such as whistleblowing). Additionally, the law excludes certain entities, such as certain household goods carriers, from the imposition of joint liability on client employers for all workers supplied by a labor contractor (AB 1509).
]]>http://calemploymentlawupdate.proskauer.com/2015/11/retaliation-against-family-members-of-whistleblowers-prohibited/feed/0N.D. Cal.: Internal Whistleblowers Are Protected and May Sue Individual Directorshttp://calemploymentlawupdate.proskauer.com/2015/11/n-d-cal-internal-whistleblowers-are-protected-and-may-sue-individual-directors/
http://calemploymentlawupdate.proskauer.com/2015/11/n-d-cal-internal-whistleblowers-are-protected-and-may-sue-individual-directors/#respondTue, 03 Nov 2015 03:12:11 +0000http://calemploymentlawupdate.proskauer.com/?p=5751Continue Reading]]>On October 23, 2015, the U.S. District Court for the Northern District of California largely denied a motion to dismiss a whistleblower retaliation claim brought by a company’s former general counsel, ruling that: (i) the Sarbanes-Oxley Act (“SOX”) and Dodd-Frank anti-retaliation provisions provide for individual liability against board members; and (ii) the Dodd-Frank anti-retaliation provision protects internal whistleblowers (i.e., a whistleblower who did not complain to the SEC). Wadler v. Bio-Rad Laboratories, Inc., 2015 U.S. Dist. LEXIS 144468 (N.D. Cal. Oct. 23, 2015).

Background

Plaintiff Sanford Wadler, the former general counsel of Defendant Bio-Rad Laboratories, Inc. (the “Company”), filed suit against the Company and its individual board members after his employment was terminated in June 2013. Plaintiff asserted six claims against the Company, including whistleblower retaliation claims under SOX, Dodd-Frank and California Labor Code Section 1102.5. Notably, Wadler did not allege that he had ever reported any securities law violations to the SEC. Accordingly, the Company and the individual board members moved to dismiss his whistleblower claims on the grounds that he does not qualify as a protected “whistleblower” under SOX or Dodd-Frank.

The Court’s Ruling

The district court ruled that:

Although the language of SOX is ambiguous, the legislative intent and context of SOX suggest that board members may be held individually liable as agents;

Congress intended Dodd-Frank to allow for liability, which was at least as extensive as SOX, so therefore, board members may be held individually liable for retaliating against whistleblowers;

Plaintiff sufficiently pled his whistleblower claim under CA Labor Code Section 1102.5 because Plaintiff’s allegations supported an inference that Plaintiff refused to participate in a cover-up of allegedly unlawful activity; and

Internal whistleblowers are protected from retaliation under Dodd-Frank. In this regard, the court relied on the reasoning in an earlier Northern District of California case, Somers v. Digital Realty Trust, to conclude that “Dodd-Frank is ambiguous on the question of whether its anti-retaliation provisions apply to an individual who has provided information regarding possible illegal activity internally but has not provided such information to the SEC.” The court gave deference to the SEC’s expansive interpretation of Dodd-Frank.

The court only dismissed, as untimely, Plaintiff’s SOX whistleblower claim as to the individual board members to whom Plaintiff did not give adequate fair notice in his administrative complaint. Plaintiff only gave adequate fair notice, for SOX purposes, to the CEO. Therefore, the court only allowed the SOX individual liability whistleblower retaliation claim to proceed against the Company’s CEO.

Implications

This case continues the trend of whistleblower complaints being filed by in-house counsel and underscores the risks of individual liability under SOX and Dodd-Frank—risks that extend to board members as well.